Last week, during my interview with Todd Rathner, the executive director of the NFA Freedom Alliance, he said something that caught the attention of many readers and gun-rights advocates.
Here’s the exchange, with emphasis added:
S.H. Blannelberry: “Shall Certify” is a great cause, but how realistic is it to think that all 50 states would at some point adopt shall certify legislation with respect to NFA items (I suppose the same could have been said with respect to CCW laws 30 years ago)?
Todd J. Rathner: Yes “Shall Issue” CCW is the perfect parallel. We believe that any state that has Shall Issue CCW is ripe for “Shall Certify” laws to be passed. It will be difficult, it will take time, but it can be done in the 40+ states that have real Shall Issue CCW. In the meantime we also need to work on other related issues at both the state and federal level.
For instance NFAFA has just announced that we have a bill sponsor in Texas to change the law relating to NFA items in Texas. Currently NFA items are illegal in Texas…YES…Illegal! You can be charged with possession of a “prohibited weapon” if you possesses any NFA item (see TPC 46.05 http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.46.htm)
Your only protection is that the law has a “defense to prosecution” built into it, which says if the NFA items are registered pursuant to the NFA then you may raise that as a defense at trial. The practical effect is that if you possess these items, and are charged with possession, it will cost you a lot of money and time to get your guns/silencers back! I have a gun dealer in San Antonio charged under this statute who was arrested for possessing a silencer. He fought it and it cost him $14,000 and 8 months to get his silencer back! The NFAFA is the only organization focused on fixing these so called DTP laws which exist in 5 states AK, OK, TN, TX, WA.
Well, since there are a lot of gun owners who possess NFA items in Texas, this caused quite a stir and raised the concern of whether Rathner was correct in his assessment that NFA items are technically illegal in Texas.
Rathner is right, but the American Suppressor Association, another organization dedicated to making NFA items more available to law-abiding citizens put out the following press release, arguing that the “defense to prosecution” statue is really a non-issue:
In recent weeks, select organizations have made the claim that items regulated by the National Firearms Act of 1934 (NFA) are illegal to possess in Texas and four other states with large NFA markets. These states include Alaska, Oklahoma, Tennessee, and Washington. This claim is false.
NFA items ARE LEGAL to own and possess in all five of the aforementioned states.
The basis of the claim hinges upon a flagrant misrepresentation of the law. Texas Penal Code states:
“Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(6) armor-piercing ammunition;
(7) a chemical dispensing device;
(8) a zip gun; or
(9) a tire deflation device.
(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.”
The code then goes on to clarify the instances under which civilian possession of an NFA item is legal:
“(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.”
As you can see, lawful registration in accordance with the National Firearms Act is a “defense to prosecution”. In Texas, any “defense to prosecution” has to be disproven by the state beyond a reasonable doubt. If reasonable doubt is established that the item in question is properly registered, the state requires that the defendant be acquitted.
In practical terms, this defense will only come into play if a law enforcement officer in Texas requests to see your proof of registration for an NFA item, and you are unable to produce the proper paperwork. On the other hand, if an individual is arrested for the possession of an NFA item, all he or she would need to do to avoid charges is show their ATF Tax Stamp for each NFA item. Nearly all prosecutors understand that even if a person doesn’t have their tax stamp when arrested, producing it at trial will raise enough of a reasonable doubt to make a conviction impossible. As a result, most prosecutors are not interested in pursuing cases that will obviously end in acquittal. Doing so could result in malicious prosecution charges.
This defense is similar to how Texas handles drivers who are caught operating a motor vehicle without a license. They too have a defense to prosecution, and will be acquitted if the driver can produce a driver’s license in court that was valid at the time of their offense (Tex. Trans. § 521.025(d)).
When discussing the legality of NFA items, bear in mind that Texas is by far the largest NFA market in the country. In terms of suppressors, Texas has 86,579 in circulation as of March, 2014, according to the ATF’s 2014 Annual Statistical Update of Firearms Commerce in the United States. With a combined total of 136,182 registered suppressors, AK, OK, TN, TX, and WA make up nearly 25% of the market. Although there are slight variations amongst defense to prosecution laws in different states, and although better statutes would be ideal, all five of these states allow civilians to own and possess NFA items in a similar manner to Texas. The ATF would not have approved the transfer of over 136,000 suppressors to these states if they were illegal.
The American Suppressor Association is the unified voice of the suppressor industry. The interests of suppressor manufacturers, distributors, dealers, and consumers are our only priorities. Although we will work in 2015 to enact stronger policy surrounding existing defense to prosecution laws, our primary initiatives on the state level will remain the passage of state ownership, hunting, and shall certify legislation across the country. We will not be fooled by fabricated issues.
Upon reading that press release, NFA Freedom Alliance responded, defending its position that NFA items are technically illegal and that the “defense to prosecution” should be repealed:
In a statement revealing a fundamental disconnect with the concerns of the NFA community, a Second Amendment trade organization recently claimed that the NFA Freedom Alliance’s efforts to replace and improve upon defense-to-prosecution statutes in states like Alaska, Oklahoma, Tennessee, Texas, and Washington are unnecessary and constitute a “fabricated” issue.
Under a defense-to-prosecution (DTP) statute, possession of an item regulated by the National Firearms Act (NFA) is technically illegal; however, criminal courts are required to accept the defense that the item was possessed in full compliance with the NFA. The NFA Freedom Alliance maintains that DTP statutes place a draconian burden of proof on gun owners and that, because law enforcement officers are not judges and have no authority to rule on the legitimacy of a criminal defense, officers in DTP states are more likely to arrest the owner of a properly registered NFA item and let a court settle the matter.
The suggestion that defense-to-prosecution statutes are a non-issue does not sit well with Michael Mihalski, a San Antonio gun dealer who was arrested in Austin, Texas, in September of 2013 for possessing a rifle suppressor purchased and registered in full compliance with the National Firearms Act. “As someone who was arrested, booked, and forced to pay thousands of dollars in legal fees and wait eight months to get my suppressor and rifle back, I can tell you this is not a ‘fabricated’ issue,” said Mihalski. “It is a very real issue that has been and will continue to be used to persecute law-abiding citizens with legally registered NFA items. Of course, I shouldn’t be surprised that the same organization that completely ignored my pleas for assistance when I was arrested, is now claiming that the law is fine as written.”
NFAFA Executive Director Todd Rathner, added, “It is unfortunate that a Second Amendment organization would be either too naïve to understand the negative implications of defense-to- prosecution statutes or too egotistical to support an initiative launched by another organization. The NFA Freedom Alliance will not be distracted from our mission by petty naysayers, and self-serving groups who view likeminded organizations as rivals. We will continue to protect the NFA community will all we’ve got, and we stand ready to work with the entire Second Amendment community to secure the rights of all NFA owners.”
It appears there’s a disagreement between the two organizations regarding the urgency of repealing and replacing “defense to prosecution.” NFAFA believes it’s a high priority whereas ASA appears to be content with the status quo, though it does acknowledge that better laws would be ideal.
Where I come out on all of this is I support both the NFAFA and the ASA. While they may disagree on what is the optimal strategy to making NFA-items more readily available, in terms of the big picture, they both are fighting the good fight.
What are your thoughts?